DNA tests pave way to man's release from prison

Tuesday

Nov 25, 2008 at 12:01 AMNov 25, 2008 at 8:43 PM

The phone call came about 2 p.m. Friday. “You need to come down here now,” Oneida County District Attorney Scott McNamara was told by the task force he organized to re-investigate the 1985 rape and murder of 16-year-old Kimberly Simon, a high school junior from Marcy, N.Y.

Rocco LaDuca

The phone call came about 2 p.m. Friday.

“You need to come down here now,” Oneida County District Attorney Scott McNamara was told by the task force he recently organized to re-investigate the 1985 rape and murder of 16-year-old Kimberly Simon, a junior at Whitesboro High School in Whitesboro, N.Y.

McNamara quickly went to the basement of the Oneida County Office Building, where the task force is headquartered.

After taking one look at an e-mail on the computer screen, McNamara realized what no person in law enforcement ever wants to hear: The system had failed.

DNA recovered from Simon's nude and bruised body did not match that of Steven Barnes, the Marcy man who has spent nearly 20 years in prison for a murder he always claimed he didn't commit.

McNamara immediately called the Innocence Project in New York City, and plans were set in motion to put 42-year-old Barnes on the path to be released from prison today.

“I believe that, for anybody who does what I do for a living, the worst thing that could happen to us is that we put somebody in jail that did not commit a crime,” McNamara said. “I think that's the thing that troubles all of us, day in and day out.”

About 30 people crowded into the Oneida County Courthouse Monday afternoon to get a glimpse of the man about to be set free.

But Barnes never appeared. Instead, the court proceeding was adjourned until 9:30 a.m. today at the request of Barnes' attorney with the Innocence Project, a New York City nonprofit group that works to exonerate wrongfully convicted individuals.

“I'm just very happy for Steve that, hopefully, he'll be able to get home for Thanksgiving,” said Innocence Project staff attorney Alba Morales, who appeared in court Monday on
Barnes' behalf. “This is a dream that his mother has had every Thanksgiving, and finally it's going to come true. So it's a joyous occasion for Steve and the entire family.”

Barnes and his family, along with Innocence Project co-Director Barry Scheck and McNamara, are expected to address the media following the proceeding.

Although Barnes likely will be released from custody today, McNamara and the Innocence Project said the charges against Barnes still will remain pending while the case remains under investigation.

“It would be inappropriate for me to make a decision regarding the indictment without some serious contemplation,” McNamara said. “I think we need to proceed with caution and with respect to Kimberly and her family.”

An imperfect system

On Monday, McNamara, who has been district attorney since 2006, expressed the disappointment he felt in having to correct a mistake that modern DNA technology may have prevented from ever occurring.

“When something like this happens, it shakes people's confidence in our system,” McNamara said. “But, like humans, it's not perfect.”

On Nov. 10, McNamara was informed that - for the first time - DNA profiles had been obtained from evidence on Simon's body, her bra and the waistband of her pants, he said.

But because the Cellmark Diagnostics laboratory did not have a blood sample from Barnes, officials from the District Attorney's Office and the Innocence Project traveled to the Southport Correctional Facility near Elmira on Nov. 13. A DNA sample was obtained, and Cellmark began one last test, McNamara said.

It was that last test that yielded a negative DNA result and led to what McNamara described as the worst phone call he ever had to make: Telling Simon's family the wrong person was convicted in her death.

“Everybody hopes that somehow justice works out, but in this case it hasn't worked out for Kimberly's family, and it hasn't worked out for Steve Barnes,” he said.

Barnes was sentenced to 25 years to life in prison after a jury found him guilty of rape and murder in 1989. He was summoned from Southport Correctional Facility and spent Monday night in Oneida County jail.

McNamara said he shares in the grief that is being felt by Simon's family, which has moved from the area.

“If I was in their shoes, I know how they'd feel,” McNamara said. “Now, in my opinion, they're back to square one.”

And that's exactly where McNamara finds himself right now as well, he said.

New task force

McNamara formed a task force earlier this month involving investigators from his office and other police agencies to take a new look at all the circumstances surrounding Simon's death.

With new DNA profiles to consider, the task force already has begun the process of trying to find out what person or persons really is responsible for raping and killing Simon along the Mohawk River in Whitestown in September 1985.

One step investigators already have planned to take is to see whether the recovered DNA matches any people who have been incarcerated in the prison system, McNamara said.

“I believe we have a very strong and investigatable lead,” McNamara said. “All we can do at this point is try to go back, look at this case and bring to justice the person or persons that are responsible for the terrible things that happened to Kimberly.

“That's what I intend to do, and that's what the investigative team intends to do,” McNamara said. “There are a lot of people out there providing information they feel is significant, and we will track that down.”

During the investigation, Barnes will remain released on his own recognizance, McNamara said.
“Based on the lack of evidence at this time, I don't think it would be appropriate to infringe upon Mr. Barnes' freedom any longer,” McNamara said.

Observer-Dispatch

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